If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
I don't wish to facilitate corporate crime, and it's obvious that some of Google's anti-competitive behavior is unlawful. But, I don't see any realistic alternative to what Google is doing in the current legal environment.
> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication.
Wow. This is the opposite of how I feel. Mega-corporations should have their communications logged at a much higher level than a normal business. The things that have come out in court show how they manipulated their customers (advertisers). Regardless of how you feel about advertising a portion of those companies are small mom and pop shops trying to get by. If you have communications that can be used as evidence you're probably in the wrong.
> If you have communications that can be used as evidence you're probably in the wrong.
That does not match my second hand accounts of how the law and lawyers work at this level, at least in the USA. Lawyers, at least in part because it is there job, will scrutinize every communication for anything that has the slight chance to be interrupted in their cases favor regardless if that interpretation is truthful.
The system of law in the USA is adversarial, the Lawyer's job is to present the case in the best possible light not to find and present the truth. So if something taken out of context plays well for their case it will be used. That could include decades old communications that no one remembers happening on a tangental topic.
Corporations aren't real things. It's a group of people doing something. And people make mistakes.
One of the objectives of a corporation is to reduce liability. If open and honest communication means that they end up liable, then they just won't have open and honest communication. End result is dysfunctional and compartmentalized companies. And ultimately the cost for all of this will be borne by everyone.
One way to get open and honest communications from the corporation is if employees are personally liable. But then you wouldn't have open and honest communication from those employees.
Imagine you work as an aerospace engineer. Imagine having to couch/overthink everything your say in communication so that it can't be taken out of context later. You literally have yearly training on how you have to communicate and in hugely impacts how people work because one dumb one off comment in email can financially end the company when an accident occurs.
and that's before you get to the fact that you have to defer how your IT systems work to the lawyers from the big overseas insurance company that covers your company/products. It's a major pain to get them to sign off on collaboration systems because they are such a discovery risk not because you are hidings, but because of how people communicate especially around issues. As far as discovery goes with aerospace, if your engineers anywhere acknowledged any problems, you are hit. How can you have a good product/continuous improvement when you can't acknowledge issues in writing?
> If you have communications that can be used as evidence you're probably in the wrong.
The problem is that most employees are not lawyers so they cannot make a proper legal judgement on their routine works. And even lawyers are frequently making mistakes. And if you think prosecutors are not good at "creative legal interpretation", then you probably don't know much about them. Seemingly innocent things can become the greatest weapon at the hand of competent prosecutor.
“ If you have communications that can be used as evidence you're probably in the wrong.”
I’m surprised to see someone advocating for “if you haven’t done anything wrong you don’t have anything to hide” on HN. The cognitive dissonance must be in overdrive here!
> Mega-corporations should have their communications logged at a much higher level than a normal business.
I agree entirely. And it's not like it's unprecedented: we treat banks like this already. They have to keep records of all internal communications for years.
And it doesn't stop banks from breaking the law, or their employees from doing so in (recorded and logged) internal communications.
> Mega-corporations should have their communications logged at a much higher level than a normal business.
I agree. But, it needs to be balanced by making the penalties for companies engaging in vexatious and/or abusive litigation and vexatious discovery tactics very, very harsh. Megacorps would dislike both of those things happening to them, so we'll never see it.
Yes, I think corporations are fundamentally different entities from normal businesses because they benefit from macroeconomic monetary policies and regulations in ways that normal businesses do not. As they have an unfair advantage over their competitors, they have a responsibility and should be treated essentially as government organizations. The correlation between corporate stock price and Fed monetary policy decisions is undeniable. Just consider that Fed money is the people's money... Paid for via inflation/dilution and loss of value of everyone's salary contracts. Literally, your 100k per year employment contract will have lost about half of its value after 10 years (assuming the government's own figures) if you don't re-negotiate your contract.
Plus, even if you do re-negotiate your contracts frequently, your salary still lags inflation and by that time your colleagues in the industry will be more oppressed than they are today and you will have to compete with people who will have lower self-confidence than they have today and thus they would accept lower salaries which will drive down your own wage.
The tech industry is tough because the average worker has low self-esteem. Also corporations drive down self-esteem by monopolizing the industry so even the most skilled workers feel hopeless to compete against them.
I wish I had put more thought into this when I started my career. I would have studied law. Lawyers have ridiculously high self-esteem considering often rather limited knowledge compared to engineering professions. Engineers are nerds with confidence issues so they tend to accept less than they could get, driving down wages. Not to mention regulatory moats that exist around the legal profession which keep the supply of accredited professionals low and thus keeps their wages high (supply/demand dynamics).
Yeah it's amazing how we bend over backwards to make sure things work smoothly for big corporations, but simply accept the inefficiencies intrinsic to mom and pop shops. It's very important to society that huge concentrations of power be monitored for abuse of said power, therefore the inefficiency of all communications being kept is intrinsic to big corporations.
It ends up as evidence when routine business operations are breaking the law. Everywhere I’ve worked hasn’t had an issue with this stuff being tracked and several places actively preferred when stuff was recorded. Most companies don’t have an issue with clear communication because they’re not worried about what’s being said will end up part of a criminal investigation.
So this is something that’s almost exclusively going to harm criminal organizations by making them less efficient.
> Most companies don’t have an issue with clear communication because they’re not worried about what’s being said will end up part of a criminal investigation.
Only if you count "most companies" by company, i.e. most companies are therefore small businesses. And of course they're not worried because they're small and not subject to these kinds of investigations. They're not profitable enough to be targets.
But if you count "most companies" by where most people work, you're talking about medium-to-large corporations. And it's standard these days to have policies exactly like Google's, to not retain instant messages for example, and delete e-mails after a short number of years. Because they're big juicy targets for frivolous lawsuits.
So no, this isn't a win-win. People say dumb stuff all the time that a lawyer can take out of context. That doesn't mean a corporation is a criminal organization, as you suggest.
Corporations sue each other all the time, not because the corporation being sued is criminal, but because the corporation suing thinks it'll be able to get away with it. But you seem to be ignoring that.
"Give me six lines written by the most honorable of men, and I will
find an excuse in them to hang him."
I would guess you haven't had to experience such an unfair situation personally as you still have that young/naive optimism about the world. If you ever find yourself entangled in some legal technicality, you will realize that that is a really bad idea.
On a similar note, never talk to the police, no matter how lawful you may think you are.
"Google produced 13 times as many emails as the average company per employee did before it was a decade old, Kent Walker, Google's top lawyer, testified in the Epic trial. Google felt overwhelmed, he said, and it was clear to the company that things would only become worse if changes weren't made."
According to Google's own testimony this is a Google problem not a problem shared by the other average companies that produce 13 times less email per employee than Google.^1
A reasonable person might suggest that the company's employees try to produce less email (and instant messages) like other companies.
Instead, a crook might agree that the company destroy email (and instant messages), potential evidence, immediately after being created.
But Google does not do that by default for the public with Gmail and its instant message services. Maybe because the average user is not a crook.
1. Google probably has far more than 13 times the amount of storage capacity than the average company.
Destroying potential evidence at a company is what it is. It is not like there are multiple ways to interpret it. Google did it even after they knew they were being inestigated.
Feels like a suss statistic. Counting the emails I have sent/received is as meaningful as counting network packets. Which dev working on services hasn't accidentally sent themselves 40k email alerts? Well, a few I imagine, but certainly not this one!
Many of the senior mandatory corporate trainings I've been to, often led by lawyers, basically state that "e-mail is evidence-mail" and to watch what you send.
> But, I don't see any realistic alternative to what Google is doing in the current legal environment.
They could not commit crimes. They could not conspire to commit crimes in the future. They could be happy with having won business and stop committing crimes.
> If anything you ever say during routine business operations can end up as evidence, clear and honest communication will suffer. The effectiveness of organizations, including the ability to act ethically, will be seriously degraded.
Most orgs I've been at with this concern either on a large or silo'd level, will either change policies to fit, whether that be retention times for chat messages or guidelines to not record certain types of meetings/etc.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
Mixed bag. Not every org will be OK with someone bringing up various regulations known in a recorded meeting, or even saying the potential number of impacted risk cases on a call raised with an issue in production. OTOH I've been at shops where I asked about the legality of something and it was thanked for being on the record (Thankfully that org was super-compliant and it was never about production, only design.)
I don't know, looking back in over two decades of my career in the industry, I can hardly think of any communication that, if it ended in evidence, would constitute any trouble. Sure, some would be embarrassing for me personally, revealing me asking stupid questions, making wrong decisions and being responsible for some failures, but that's life. There would be some commercial secrets, sure. But noting that I would need to work hard to conceal.
Maybe that's because I am a low level code monkey and communications in the higher spheres are full with nefarious plans about how to do illegal stuff and suppress competitors - but honestly I never observed anything close to a picture that you are painting.
Has somthing changed? The current legal environment seems to favor corporations and deep-pocketed litigants. The US Supreme Court keeps giving them more and more power, including free speech, freedom of religion, unlimted political donations, etc.
It's not journalists that have weaponized the law, it is corporations. The assertion that the overwhelmingly powerful are victims is awesome propaganda - attack the other side (with what you are guilty of), change the subject, etc.
With the likely coming war on journalism, I'm sure this will be a popular talking point. Maybe it's being previewed now?
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication
Funny really that it was Eric Schmidt who said on the topic of privacy: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."
"... except if you're a corporate employee in a routine business conversation" – added Schmidt after some additional consideration.
But.. but.. ethics will degrade if you can't do illegal things!
Call me jaded, but if my 8 person company could say " maybe we should get legal advice before doing that" I am not going to wring my hands over poor, persecuted Google. They've become an ad company with some web tools on top.
This comment would make sense if all companies communicated like Google does, but they don’t. Most companies have remarkably open internal conversations.
google made internal chat messages disappeared after N days, which was disclosed in one of the trials, but I do not recollect any following punishment.
Not illegal per se, but if you're under a preservation order and specifically instruct someone to use disappearing messages to evade it, it can get a bit iffy.
having worked at a tech company subject to a “legal hold” just in case the government wanted to sue us in the future, i agree that it’s absolutely asinine. have to save every device, every file, every email, every chat, every document, forever, indefinitely? what does it even mean to “preserve a document”? can it be edited?
As cheap as storage is, we're going to end up in a situation where every business with >100 employees is expected to have cameras and microphones recording and transcribing every conversation just in case people might be communicating outside email and chat.
These policies are in place because companies have learned that journalists will happily take any comment, from any employee, from any context, and make it Crucial Evidence(TM) of impropriety...
People love to demonize journalism, but who else will hold the powerful like Google to account? The meme of demonization comes from the powerful - 'enemy of the people', etc.
> journalists will happily take any comment, from any employee, from any context, and make it Crucial Evidence(TM) of impropriety...
I think that's more a problem of social media, where it seems true more often than not, and not professional media, which actually reviews evidence, corroborates, etc., and are subject to expensive lawsuits if they fail (e.g., Fox News has paid out something like a billion dollars over smearing the voting machine manufacturers).
It depends what you call 'professional', but I mean high-quality sources like NY Times, CBS News, etc. (Yes, you can find where they've been accused of failing, which of course will happen, and where they've actually failed - there's nothing perfect under the sun).
The targets of professional journalists' investigations will lie their asses off - until they are caught, and then they switch to a fall-back lie. They also use the tactic of attacking the messenger. They aren't under oath or required to answer questions.
> I think that's more a problem of social media, where it seems true more often than not, and not professional media
For one thing, Professional Media is inextricably linked to Social Media (especially Twitter), and are leading participants in the salacious outrage bait economy there. For another, my criticism is not that journalists are making things up from whole cloth, but rather that they are more than willing to comb through discovery filings to find the most outlandish thing anyone has every said in order to paint a picture that may or may not be an representative of the broader case.
I don't think they do this because they are the "enemy of the people", but because it drives engagement.
> People love to demonize journalism, but who else will hold the powerful like Google to account?
That sounds like "people love to demonize collective farms, but how else would you grow food?" The question begs the answer - other people who are not part of collective farms could do it very well and have been doing it for centuries. You don't have to be a part of billion-dollar corporation controlled by a billionaire and have a degree for which you owe your whole net worth and hope some politician will consider you worthy of bribing to pay it off - you don't need any of that to tell the truth. Especially not these days when literally anyone still can speak publicly easily, despite all the efforts from "real journalists" to put an end to it.
> I mean high-quality sources like NY Times, CBS News
ITYM "corporations that are constantly lying to us like"...
> where they've been accused of failing,
They are not "accused of", there are literally dozens if not hundreds only recent cases where we know they lied, we know why they lied, they know we caught them lying, and yet nothing happened and people like you keep calling them "high-quality sources".
> The targets of professional journalists' investigations will lie their asses off
Unfortunately, the professional journalists will lie their asses off as frequently, if not more. The good news are that we don't really need them anymore.
Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.
Then all these written opinions were gobbled up by lawyers during the discovery phase of endless lawsuits Google has to defend. It created constant headache so they said, we'll auto delete chats older than a few days unless you opt-out.
Now a court and this article say they are destroying evidence.
I've personally lost my trust in both the media and the legal system honestly. The incentives are just not aligned with good outcomes. The incentive for the media is more and more drama and the incentives for lawyers is always adversarial depending on who they represent.
> Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.
What is specific to Google is that they have monopolies, and it's illegal to use that power to kill the competition. One solution is for a manager or executive to say, 'no, we can't do that' instead of promoting the idea.
One of the better-known instances, at least for Geeks Of a Certain Age, was "Bad Attitude", the unofficial group chat for Netscape, run personally by jwz. He'd written about the consequences of that being included within the scope of discovery by Microsoft lawyers during Netscape's actions against that company.
> put “attorney-client privileged” on documents and to always add a Google lawyer to the list of recipients, even if no legal questions were involved and the lawyer never responded
Wow. One of the very first things I learned when onboarding to a US company is that the client-attorney privilege does not work like that at all.
“Privileged and confidential” is not a legal shibboleth (especially not when used so incorrectly).
We’re not even allowed to add watchers to our legal Jira since our lawyers have told us it destroys privilege if there are multiple people in the discussion with the legal team. No chance if that’s true that a “cc:Lawyer” would provide any meaningful protection.
I'm a little skeptical of the article, because I know that it's not a legal shibboleth, and I think I learned it when working at Google quite a long time ago.
I suspect "put “attorney-client privileged” on documents" is only a policy in specific areas within Google due to poor leadership in those specific areas, and that's being magnified for clicks/outrage.
Yes, and it can actually backfire, by opening the floodgates to all communications. (As you lose all credibility after some point.) You are just betting nobody is going to keep digging.
I imagine that this is done to pollute the corpus. When lawyers do want to eventually wade through Google’s docs, if every doc says it's privileged, then they have to wonder: can that notice be ignored on this doc, or is it actually privileged? (This does hinge on “crying wolf” not invalidating the privilege of actually privileged documents.)
Two comments, directed to the majority of discussions:
a) It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation strategy in direct violation of the Duty to Preserve as outlined in the Federal Rules of Civil Procedure (https://www.law.cornell.edu/rules/frcp/rule_37)
That is deletes information.
“Google had a top-down corporate policy of ‘Don’t save anything that could possibly make us look bad,’” she said. “And that makes Google look bad. If they’ve got nothing to hide, people think, why are they acting like they do?”
b) I think and I hope we have not heard the end of this. There are worse things to do than being found as an individual to have violated anti-trust laws, I don't know say have actively setup and organized thousands of people to directly obstruct justice and destroy records to hide such actions: 18 USC §§1503, 1512(c)... (See https://www.law.cornell.edu/uscode/text/18/1512)
"Judge James Donato of the U.S. District Court for the Northern District of California, who presided over the Epic case, said that there was “an ingrained systemic culture of suppression of relevant evidence within Google” and that the company’s behavior was “a frontal assault on the fair administration of justice.” He added that after the trial, he was “going to get to the bottom” of who was responsible at Google for allowing this behavior."
You have the DoJ and three judges looking at you with your pants down. I hope this is the beginning honestly, otherwise what message does it send to every other entity out there? Imagine this happening on any interaction you have as a consumer or employee.
> It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation... That is deletes information.
Not at all. Obviously, Google's mission is to organize the world's public information. You don't want Google organizing your personal Gmail for the world to see, do you? So why would you expect Google to organize its own instant messages for the world to see?
> You have the DoJ and three judges looking at you with your pants down.
Judges disagree with each other. All the time. Investigations often don't even make it to trial because there isn't a good case in the end. And just because you have judges investigating you doesn't mean you're guilty. Presumption of innocence and all that, you know?
Just for the second comment related to guilt: it is now an undisputed fact as Courts are concerned that evidence spoliation happened. They are looking for who inside Google was involved here.
Equivalently: there is a body, we know for a fact it was murder, and we know the killer is somebody here. Presumption of innocence will become applicable against whoever the prosecution goes as an individual. Not that the crime happened.
On the first comment: Google does use emails to target ads, so I am not sure what the argument is, could you clarify perhaps?
I was watching Kennedy's (RFKjr's daughter) interview with Tucker and she talked about her first day at work at C.I.A. and instructions on how to tag emails. She said there was a huge drop down and she was told to just set a default (which turns out is the highest possible security setting) "even for things like 'want to go get a coffee?'" Quite clever since that set of emails will be an enormous pile of mostly useless chit chat with other matter buried in the mess.
This isn't really a special case. Google provides similar retention policy settings to other organizations that use Google Workspace [1]. Any large organization that's a target of lawsuits will likely find them useful.
I remember Urs arguing for this at TGIF quite some time ago. He said legal costs were increasing exponentially while the value of old email was only linear, which was unsustainable.
One outcome of this was to wipe a number of ongoing scientific discussions I was having with external collaborators. I'm used to people having the last 30 years of mail on hand to be able to carry out extremely long, complex projects.
Did they not have the indef label at that time? In any case, at some point your collaborators will leave institutions and thus get a new email address. What happens then?
Good point. To add to that, I hazard a guess that the legal costs are about collecting everything for discovery, and not necessarily about them causing Google to lose legal cases.
What's amusing is that at that very time, Google was building its Email Discovery platform (https://support.google.com/a/answer/2462365?hl=en)- basically a way for lawyers to search, inspect, and triage emails in an org to make them available. Yes, lawyers (billing hourly) trawl through hundreds to thousands of email then hand them over to the opposition. I talked to the eng building the product and they said they personally had to do some manual email classification to train the retrieval models and that they lost any interest in using email after seeing what people put it their corporate email.
> He said legal costs were increasing exponentially while the value of old email was only linear
Uh this sounds cool at first when you say it, but what does it actually mean? Can't he just say legal costs of keeping that email is more than the value of it. How did he derive exponential?
Google 100% provided advice for concealment specifically targeted at future litigation. Gchat logs were specifically reduced company-wide explicitly to avoid court discovery.
I personally saw the advice to cc a lawyer with a legal question in order to bring a conversation under attorney client privilege.
The penalty they’re facing in now way accounts for the money they saved by concealing evidence, which basically means “keep doing it, it works!”
It's illegal to destroy evidence of a crime but it's not illegal to avoid creating evidence in the first place especially if you genuinely believe that you're not doing anything wrong. Generally speaking, companies are not obligated to preserve every chat forever just in case they get sued later on.
I wonder if the widespread adoption of video chat will shake up norms here. Not recording or purging the recording from a Zoom meeting or Zoom-enabled conference room seems exactly as scandalous as using an OTR messenger or a short retention period on email.
> It's illegal to destroy evidence of a crime but it's not illegal to avoid creating evidence in the first place...
One can see how regular folks might consider the practice of automatically destroying chat and email messages after one to three months destruction of material which could be evidence.
"Never erase anything" seems to work fine for highly-regulated businesses like banks. And while long-term storage of electronic communications isn't free of charge, it's not at all in the same ballpark as storing decades of paper memos and other paper internal office communications.
Also: The widespread directive to "magically" turn documents into privileged communication with lawyers makes Google's bad intent very, very clear.
Everything that happened around this time was so fishy. I completely lost trust on Google doing the right thing at this point as they were silencing people protesting against working with military/defense contractors.
Readit News
There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
I don't wish to facilitate corporate crime, and it's obvious that some of Google's anti-competitive behavior is unlawful. But, I don't see any realistic alternative to what Google is doing in the current legal environment.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication.
Wow. This is the opposite of how I feel. Mega-corporations should have their communications logged at a much higher level than a normal business. The things that have come out in court show how they manipulated their customers (advertisers). Regardless of how you feel about advertising a portion of those companies are small mom and pop shops trying to get by. If you have communications that can be used as evidence you're probably in the wrong.
That does not match my second hand accounts of how the law and lawyers work at this level, at least in the USA. Lawyers, at least in part because it is there job, will scrutinize every communication for anything that has the slight chance to be interrupted in their cases favor regardless if that interpretation is truthful.
The system of law in the USA is adversarial, the Lawyer's job is to present the case in the best possible light not to find and present the truth. So if something taken out of context plays well for their case it will be used. That could include decades old communications that no one remembers happening on a tangental topic.
One of the objectives of a corporation is to reduce liability. If open and honest communication means that they end up liable, then they just won't have open and honest communication. End result is dysfunctional and compartmentalized companies. And ultimately the cost for all of this will be borne by everyone.
One way to get open and honest communications from the corporation is if employees are personally liable. But then you wouldn't have open and honest communication from those employees.
and that's before you get to the fact that you have to defer how your IT systems work to the lawyers from the big overseas insurance company that covers your company/products. It's a major pain to get them to sign off on collaboration systems because they are such a discovery risk not because you are hidings, but because of how people communicate especially around issues. As far as discovery goes with aerospace, if your engineers anywhere acknowledged any problems, you are hit. How can you have a good product/continuous improvement when you can't acknowledge issues in writing?
The problem is that most employees are not lawyers so they cannot make a proper legal judgement on their routine works. And even lawyers are frequently making mistakes. And if you think prosecutors are not good at "creative legal interpretation", then you probably don't know much about them. Seemingly innocent things can become the greatest weapon at the hand of competent prosecutor.
I’m surprised to see someone advocating for “if you haven’t done anything wrong you don’t have anything to hide” on HN. The cognitive dissonance must be in overdrive here!
I agree entirely. And it's not like it's unprecedented: we treat banks like this already. They have to keep records of all internal communications for years.
And it doesn't stop banks from breaking the law, or their employees from doing so in (recorded and logged) internal communications.
I agree. But, it needs to be balanced by making the penalties for companies engaging in vexatious and/or abusive litigation and vexatious discovery tactics very, very harsh. Megacorps would dislike both of those things happening to them, so we'll never see it.
Legal battles can be very expensive, even if you are not actually in the wrong.
Plus, even if you do re-negotiate your contracts frequently, your salary still lags inflation and by that time your colleagues in the industry will be more oppressed than they are today and you will have to compete with people who will have lower self-confidence than they have today and thus they would accept lower salaries which will drive down your own wage.
The tech industry is tough because the average worker has low self-esteem. Also corporations drive down self-esteem by monopolizing the industry so even the most skilled workers feel hopeless to compete against them.
I wish I had put more thought into this when I started my career. I would have studied law. Lawyers have ridiculously high self-esteem considering often rather limited knowledge compared to engineering professions. Engineers are nerds with confidence issues so they tend to accept less than they could get, driving down wages. Not to mention regulatory moats that exist around the legal profession which keep the supply of accredited professionals low and thus keeps their wages high (supply/demand dynamics).
So this is something that’s almost exclusively going to harm criminal organizations by making them less efficient.
That sounds like a win win.
Only if you count "most companies" by company, i.e. most companies are therefore small businesses. And of course they're not worried because they're small and not subject to these kinds of investigations. They're not profitable enough to be targets.
But if you count "most companies" by where most people work, you're talking about medium-to-large corporations. And it's standard these days to have policies exactly like Google's, to not retain instant messages for example, and delete e-mails after a short number of years. Because they're big juicy targets for frivolous lawsuits.
So no, this isn't a win-win. People say dumb stuff all the time that a lawyer can take out of context. That doesn't mean a corporation is a criminal organization, as you suggest.
Corporations sue each other all the time, not because the corporation being sued is criminal, but because the corporation suing thinks it'll be able to get away with it. But you seem to be ignoring that.
I would guess you haven't had to experience such an unfair situation personally as you still have that young/naive optimism about the world. If you ever find yourself entangled in some legal technicality, you will realize that that is a really bad idea.
On a similar note, never talk to the police, no matter how lawful you may think you are.
According to Google's own testimony this is a Google problem not a problem shared by the other average companies that produce 13 times less email per employee than Google.^1
A reasonable person might suggest that the company's employees try to produce less email (and instant messages) like other companies.
Instead, a crook might agree that the company destroy email (and instant messages), potential evidence, immediately after being created.
But Google does not do that by default for the public with Gmail and its instant message services. Maybe because the average user is not a crook.
1. Google probably has far more than 13 times the amount of storage capacity than the average company.
Destroying potential evidence at a company is what it is. It is not like there are multiple ways to interpret it. Google did it even after they knew they were being inestigated.
Feels like a suss statistic. Counting the emails I have sent/received is as meaningful as counting network packets. Which dev working on services hasn't accidentally sent themselves 40k email alerts? Well, a few I imagine, but certainly not this one!
They could not commit crimes. They could not conspire to commit crimes in the future. They could be happy with having won business and stop committing crimes.
Most orgs I've been at with this concern either on a large or silo'd level, will either change policies to fit, whether that be retention times for chat messages or guidelines to not record certain types of meetings/etc.
> There needs to be some kind of work product doctrine, which protects the privacy of routine business communication. Defining that, while allowing the collection of evidence of criminal activity, won't be easy, but the current state of affairs is unworkable.
Mixed bag. Not every org will be OK with someone bringing up various regulations known in a recorded meeting, or even saying the potential number of impacted risk cases on a call raised with an issue in production. OTOH I've been at shops where I asked about the legality of something and it was thanked for being on the record (Thankfully that org was super-compliant and it was never about production, only design.)
Maybe that's because I am a low level code monkey and communications in the higher spheres are full with nefarious plans about how to do illegal stuff and suppress competitors - but honestly I never observed anything close to a picture that you are painting.
Has somthing changed? The current legal environment seems to favor corporations and deep-pocketed litigants. The US Supreme Court keeps giving them more and more power, including free speech, freedom of religion, unlimted political donations, etc.
It's not journalists that have weaponized the law, it is corporations. The assertion that the overwhelmingly powerful are victims is awesome propaganda - attack the other side (with what you are guilty of), change the subject, etc.
With the likely coming war on journalism, I'm sure this will be a popular talking point. Maybe it's being previewed now?
Funny really that it was Eric Schmidt who said on the topic of privacy: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."
"... except if you're a corporate employee in a routine business conversation" – added Schmidt after some additional consideration.
Call me jaded, but if my 8 person company could say " maybe we should get legal advice before doing that" I am not going to wring my hands over poor, persecuted Google. They've become an ad company with some web tools on top.
Just pick up the phone or meet in person and speak plainly.
I remember when Mark Cuban tried to make his CyberDust app.
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> journalists will happily take any comment, from any employee, from any context, and make it Crucial Evidence(TM) of impropriety...
I think that's more a problem of social media, where it seems true more often than not, and not professional media, which actually reviews evidence, corroborates, etc., and are subject to expensive lawsuits if they fail (e.g., Fox News has paid out something like a billion dollars over smearing the voting machine manufacturers).
It depends what you call 'professional', but I mean high-quality sources like NY Times, CBS News, etc. (Yes, you can find where they've been accused of failing, which of course will happen, and where they've actually failed - there's nothing perfect under the sun).
The targets of professional journalists' investigations will lie their asses off - until they are caught, and then they switch to a fall-back lie. They also use the tactic of attacking the messenger. They aren't under oath or required to answer questions.
For one thing, Professional Media is inextricably linked to Social Media (especially Twitter), and are leading participants in the salacious outrage bait economy there. For another, my criticism is not that journalists are making things up from whole cloth, but rather that they are more than willing to comb through discovery filings to find the most outlandish thing anyone has every said in order to paint a picture that may or may not be an representative of the broader case.
I don't think they do this because they are the "enemy of the people", but because it drives engagement.
That sounds like "people love to demonize collective farms, but how else would you grow food?" The question begs the answer - other people who are not part of collective farms could do it very well and have been doing it for centuries. You don't have to be a part of billion-dollar corporation controlled by a billionaire and have a degree for which you owe your whole net worth and hope some politician will consider you worthy of bribing to pay it off - you don't need any of that to tell the truth. Especially not these days when literally anyone still can speak publicly easily, despite all the efforts from "real journalists" to put an end to it.
> I mean high-quality sources like NY Times, CBS News
ITYM "corporations that are constantly lying to us like"...
> where they've been accused of failing,
They are not "accused of", there are literally dozens if not hundreds only recent cases where we know they lied, we know why they lied, they know we caught them lying, and yet nothing happened and people like you keep calling them "high-quality sources".
> The targets of professional journalists' investigations will lie their asses off
Unfortunately, the professional journalists will lie their asses off as frequently, if not more. The good news are that we don't really need them anymore.
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Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.
Then all these written opinions were gobbled up by lawyers during the discovery phase of endless lawsuits Google has to defend. It created constant headache so they said, we'll auto delete chats older than a few days unless you opt-out.
Now a court and this article say they are destroying evidence.
I've personally lost my trust in both the media and the legal system honestly. The incentives are just not aligned with good outcomes. The incentive for the media is more and more drama and the incentives for lawyers is always adversarial depending on who they represent.
> Google communication culture started as open and relaxed so people could go on a public internal forum and say their opinion "I think if we add x, y, z feature we can kill the competition". This is nothing specific to Google, it happens perhaps everywhere but Google wasn't policing it in written communication.
What is specific to Google is that they have monopolies, and it's illegal to use that power to kill the competition. One solution is for a manager or executive to say, 'no, we can't do that' instead of promoting the idea.
One of the better-known instances, at least for Geeks Of a Certain Age, was "Bad Attitude", the unofficial group chat for Netscape, run personally by jwz. He'd written about the consequences of that being included within the scope of discovery by Microsoft lawyers during Netscape's actions against that company.
From 1998: <https://archive.is/1bYB6>
(Archive link to avoid jwz's treatment of HN referrer headers.)
Wow. One of the very first things I learned when onboarding to a US company is that the client-attorney privilege does not work like that at all.
“Privileged and confidential” is not a legal shibboleth (especially not when used so incorrectly).
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a) It is ironic and indefensible how a company known for storing and gathering the world's information, engages directly in a massive evidence spoliation strategy in direct violation of the Duty to Preserve as outlined in the Federal Rules of Civil Procedure (https://www.law.cornell.edu/rules/frcp/rule_37) That is deletes information.
“Google had a top-down corporate policy of ‘Don’t save anything that could possibly make us look bad,’” she said. “And that makes Google look bad. If they’ve got nothing to hide, people think, why are they acting like they do?”
b) I think and I hope we have not heard the end of this. There are worse things to do than being found as an individual to have violated anti-trust laws, I don't know say have actively setup and organized thousands of people to directly obstruct justice and destroy records to hide such actions: 18 USC §§1503, 1512(c)... (See https://www.law.cornell.edu/uscode/text/18/1512)
"Judge James Donato of the U.S. District Court for the Northern District of California, who presided over the Epic case, said that there was “an ingrained systemic culture of suppression of relevant evidence within Google” and that the company’s behavior was “a frontal assault on the fair administration of justice.” He added that after the trial, he was “going to get to the bottom” of who was responsible at Google for allowing this behavior."
You have the DoJ and three judges looking at you with your pants down. I hope this is the beginning honestly, otherwise what message does it send to every other entity out there? Imagine this happening on any interaction you have as a consumer or employee.
Not at all. Obviously, Google's mission is to organize the world's public information. You don't want Google organizing your personal Gmail for the world to see, do you? So why would you expect Google to organize its own instant messages for the world to see?
> You have the DoJ and three judges looking at you with your pants down.
Judges disagree with each other. All the time. Investigations often don't even make it to trial because there isn't a good case in the end. And just because you have judges investigating you doesn't mean you're guilty. Presumption of innocence and all that, you know?
Equivalently: there is a body, we know for a fact it was murder, and we know the killer is somebody here. Presumption of innocence will become applicable against whoever the prosecution goes as an individual. Not that the crime happened.
On the first comment: Google does use emails to target ads, so I am not sure what the argument is, could you clarify perhaps?
[1] https://support.google.com/vault/answer/2990828?
One outcome of this was to wipe a number of ongoing scientific discussions I was having with external collaborators. I'm used to people having the last 30 years of mail on hand to be able to carry out extremely long, complex projects.
Uh this sounds cool at first when you say it, but what does it actually mean? Can't he just say legal costs of keeping that email is more than the value of it. How did he derive exponential?
I personally saw the advice to cc a lawyer with a legal question in order to bring a conversation under attorney client privilege.
The penalty they’re facing in now way accounts for the money they saved by concealing evidence, which basically means “keep doing it, it works!”
One can see how regular folks might consider the practice of automatically destroying chat and email messages after one to three months destruction of material which could be evidence.
"Never erase anything" seems to work fine for highly-regulated businesses like banks. And while long-term storage of electronic communications isn't free of charge, it's not at all in the same ballpark as storing decades of paper memos and other paper internal office communications.
Also: The widespread directive to "magically" turn documents into privileged communication with lawyers makes Google's bad intent very, very clear.
This is a free long term loan. It's almost like corporations pay for the laws to be like this.
Does that work legally though? If it's not only sent to the lawyer then you can't really claim that it's privileged information.
While heavily pushing Gchat to corporate customers.
At least you can't accuse them of getting high on their own supply.